Since February 15, 2016, online traders have been obliged under the ODR Regulation (Regulation (EU) No. 524/2013) have been obliged to refer to the ODR dispute resolution platform. This is intended to inform consumers about alternative dispute resolution options.
This obligation to provide information should apply to all online retailers. In its ruling of January 17, 2017 (case no.: 14 U 1462/16), the Higher Regional Court of Dresden rejected this general view. The obligation to provide information under Article 14 of the ODR Regulation only applies to online retailers who operate their own website. However, it does not apply to online retailers who sell their goods via marketplaces such as Amazon.
OLG Dresden: Amazon merchants do not have to refer to OS platform
With this decision, the Dresden Higher Regional Court confirms the ruling of the Dresden Regional Court from 14.09.2016 (Ref.: 42 HK O 70/16 EV). An online retailer operating via a marketplace such as Amazon does not have to independently refer to the ODR platform. This is because the marketplace itself is already obliged to do so.
The court emphasizes that it
“it would make no sense at all to require the marketplace trader to provide the link, because the marketplace itself is already obliged to provide the link, as is clear from the unambiguous wording of the regulation”.
Link to the ODR platform must be included on the website
According to Art. 14 of the ODR Regulation:
“Traders established in the Union who enter into online sales contracts or online service contracts and online marketplaces established in the Union shall include a link to the ODR platform on their websites. That link shall be easily accessible to consumers. […]”
The controversial point here is that Art. 14 refers to both “online marketplaces” and “their websites”. Several interpretations are possible here.
On the one hand, it can be assumed that traders must provide a link on online marketplaces and their websites. On the other hand, in the written reasons for the judgment, the Higher Regional Court of Dresden emphasizes that an online retailer who sells its goods via a marketplace is a trader within the meaning of Art. 4 para. 1 lit b of the ODR Regulation. However, it does not operate an “own” website and is therefore not subject to the provisions of Art. 14 of the ODR Regulation.
The fact that two different addressees can be read into Art. 14 of the ORD Regulation could certainly speak in favor of the Dresden Higher Regional Court’s view: firstly, traders and secondly, “online marketplaces established in the Union”. This means that, according to the wording, a trader does not have to provide its own link on an online marketplace established in the Union such as Amazon and Co.
Links to the OS platform should continue to be provided on Amazon and Co.
However, the Dresden Higher Regional Court’s ruling can also be criticized. After all, the ODR Regulation is intended to ensure a high level of consumer protection. It is not necessarily sufficient for the marketplace operator, such as Amazon, to simply provide the link. After all, the customer comes into contact with the seller – Amazon largely only takes care of the processing.
According to Art. 8 in conjunction with the Annex to the ODR Regulation, the customer should therefore also provide the website address and address of the trader – not that of Amazon. This obligation would in any case be contradictory if the Amazon page of a seller were not counted as an independent website.
Entrepreneurs are therefore well advised to continue to refer to the arbitration platform, especially as the reference does not require any particular effort.
Divergent decisions to be expected
Nevertheless, it remains to be seen to what extent other courts will follow the decision of the Higher Regional Court of Dresden or deviate from the ruling. The view that a retailer on Amazon also offers its “own website” is widespread.
Under no circumstances should warnings be rejected as unjustified with a blanket reference to the decision of the Higher Regional Court of Dresden.